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Special Courts for Law-Makers as Law-Breakers

“Absolute power corrupts absolutely”

The large majority of people support this view since they frequently observe  that people in power tend to be corrupt. Albeit this may not be the absolute truth, as there may be some exceptions where the power-wielders of good character use the power for the benefit of the mankind. Abraham Lincoln prescribed a test to assess a person’s morality, “If you want to test a man’s character, give him power”.  In Indian context, we see almost every power-wielder enveloped in the sheet of corruption; somewhere visible, somewhere invisible.  Some of them are caught, others go scot free. The major cause of concern is that day by day corruption is weakening and damaging the socio-economic structure of the country.

Criminalization of politics has reached to its peak. Today it appears that a quota has been fixed for the criminals for contesting to win the elections. The practice of threatening the voters to cast their vote for a specific candidate and physically preventing them from going to polling booth is a common sight during elections, especially in rural and tribal belts. The main reason behind such malpractices is the absence of proper, stricter legal mechanism to prevent such anti-social practices. The politicians of criminal background are fearless with the idea that no action will be taken against them and nothing will happen. The scenario of criminalization of politics in the country has of date become very dark and gloomy.

However, “there is light in the end of the tunnel”. This light is being generated by India’s judiciary by way of amending the faulty laws from time to time that had been proving the safe haven to the law makers of the suspected integrity.

Section 8 (4) of The Representation of the People Act, 1951(RPA) says, “ Notwith-standing anything in sub-section (1), sub-section (2) or sub-section (3), a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court.”

Whereas, the Hon’ble Supreme Court of India in a landmark judgment on July 10, 2013, removed the aforesaid defect of the law and struck down the Section 8 (4) the Representation of the People Act (RPA) that allowed a convicted lawmaker to remain in office despite of criminal cases pending against him. The Bench comprising of Justices A.K. Patnaik and S.J. Mukhopadhya held, “The only question is about the vires of Section 8 (4) of the RPA and we hold that it is ultra vires the Constitution and that the disqualification takes place from the date of conviction.” Accordingly, the chargesheeted MP or MLA on conviction for offences will immediately be disqualified from holding membership of the House without being given three months for appeal, as was the case earlier. The order however does not have a retrospective effect, hence those who had already filed appeals in High Courts or the Supreme Court against their conviction will not be affected.

Again on March 10, 2014, a Supreme Court bench comprising Justice R.M. Lodha and Justice Kurien Joseph while hearing a PIL petition, Public Interest Foundation & Ors Vs. Union of India & Anr; Writ Petition (Civil) No. 536 of 2011, directed that trial proceedings in cases of corruption  and serious crimes against elected representatives must be completed within one year from framing of charges. The bench took framing of charge as the starting point for fixing one year time period for completion of trial keeping in mind the law commission’s recommendation that “filing of charge-sheet is not an appropriate stage to introduce electoral disqualification. The stage of framing of charges is based on adequate levels of judicial scrutiny.

The Law Commission in its recommendation to Government of India had proposed disqualification of MPs and MLAs if a trial court framed charges against them in cases of corruption or heinous crimes. The Commission also proposed to the government to introduce a provision in the RP Act, making filing of ‘false affidavits’ about personal antecedents alongwith nomination papers an offence punishable by imprisonment for not less than two years. This obviously means, if an elected MP/ MLA is convicted for filing false affidavits, then he would lose his seat in the House and will also be debarred from contesting elections for six years.

The order of the bench reads as;

“We accordingly direct that in relation to sitting MPs and MLAs, who have charges framed against them for the offences which are specified in sections 8 (1), (2) and (3) of the RP Act, the trial shall be concluded as speadily and expediciously as may be possible and in no case later than one year from the date of the framing of charges. In such cases as far as possible, the trial shall be conducted on a day to day basis. If for some extra-ordinary circumstances, the concerned court is being not able to conclude the trial within one year from the date of framing the charges, such court would submit the report to the Chief Justice of the High Court indicating special reasons for not adhering to the above time limit and delay in conclusion of the trial. In such situation, the Chief Justice may issue appropriate direction to the concerned court extending the time for conclusion of the trial.”

This order ends the last trick of erring MPs and MLAs of evading early adjudication of their alleged crime and a possible conviction resulting in a sentence of more than two years, thereby drawing comfort from the snail-paced judicial process.
However, it was not being practically possible for the trial courts to conclude such trials in the specified period of one year. Observing this practical difficulty faced by the trial courts across the country, the Hon’ble Supreme Court of India, once again rose to the rescue of judicial process for cleansing the criminal politics.

On November 1, 2017, when the Election Commission for the first time, called for debarring convicted MPs and MLAs from contesting elections for life, a bench of the Supreme Court comprising Justices Ranjan Gogoi and Navin Sinha, suggested government to urgently set-up special fast-track courts to ensure that trials of lawmakers involved in criminal cases are completed within one year as was laid down by this court in 2014. The bench said that the compliance with the one-year deadline had not been possible because regular courts were overburdened and it was not possible for them to fast-track cases against politicians.

The court observed that the average number of cases each court across the country dealing was over 4000 in 17,000 subordinate courts, adding that unless a judicial official deals exclusively with cases involving politicians, it would be difficult for the courts to complete trials within a year. The court gave the government six weeks’ time to place before it the scheme for setting up of such courts for trial against erring lawmakers.

“A scheme to give effect to the above may be laid before the court on the next date fixed indicating the amount of funds that can be earmarked for setting up of special courts. The issue of appointment of judicial officers, public prosecutors, court staff and other such requirement of manpower and infrastructure will be dealt with by the court, if required by interacting with the representatives of the respective state governments”, the bench said.

According to Major General (Retd.) Anil Verma, Head of the Association for Democratic Reforms and National Election Watch, NGOs, of the 542 members of Parliament analysed in the year 2014, 158 members (34%) declared criminal charges and 112 (21%) serious criminal cases against them. Similarly, in the recent assembly elections in Himachal Pradesh, out of 338 candidates analysed 18% face criminal, and 9% face heinous criminal charges.

The apex court asked the Centre to apprise it about finances involved for setting up special courts for cases against MPs and MLAs. The top court also sought the status of the trial in 1581 cases involving politicians since 2014, and how many fresh cases have been filed against politicians and lawmakers in three years since 2014 as it fixed December 13 as the next date of hearing.

During the hearing, the Centre told the court that decriminalization of politics has to be done and it was not averse to the setting up of fast track courts for speedy disposal of cases involving the lawmakers. It also submitted before the bench that the recommendations of the Election Commission of India and the Law Commission favouring lifetime ban on convicted politicians was under consideration of the government.

Supporting the directions of the Hon’ble Supreme Court of India, Vasudeva Rao, IPS, Special Commissioner of Police, Delhi, said, “There is no doubt that criminalization of politicians has reached to intolerable limits. There is an impression in the minds of politicians that they are above the law and hence do not need to obey any law.”

He further said that with the view to discipline these errant politicians, swift resolution of cases against corrupt/ criminal politicians is an important and urgent requirement. However, other things equally important are awareness levels of citizens about corrupt activities of politicians, need for observations of ethical values in public life and strong advocacy of the same by the mass media.

Vasudeva Rao, is however of the opinion that banning lawmaker to contest the election for minimum six years is justified but from the principle of ‘reformative justice’ banning convicted politicians from contesting election for ever may not be justified in all cases. Depending on the severity of offence in which a politician is convicted, the judicial authority should have a say on the quantum of period for banning them from participation in public life. Subject to good conduct some cases may be reviewed in future.

The senior most police officer emphasized on educating the citizens about democratic principle and values. It is only then that the checks and balances can work effectively, people should realise that political leaders have tremendous power in their hands in changing the destiny of the Nation positively or negatively. That way, if a criminal comes to power through the election support of people, the moral liability lies on citizens too for electing a wrong representative for whatever reasons behind.

Applauding the extraordinary actions taken by the Supreme Court, Prashanta Kumar Mishra, IAS(Retd.), who also served as Member, Union Public Service Commission said that the Hon’ble Supreme Court has put adequate safeguards in preventing the criminals contest elections or retain seat of the MP or MLA despite of committing serious offences and indulging in corruption.

“However, the society cannot and should not leave every improvement in the system to the domain of the judiciary. As such, even besides preventing the criminals joining politics, the quality of the leadership has also to be improved. Gone are the days when a thumb stamping, illeterate person was eligible to become the member of Parliament or the Legislature in the name of ‘democracy’. We are now living in the advanced age of science and technology where an illetarate and untrained representative cannot be entrusted the most responsible job of leading some odd one million citizens, the good majority of whom comprise of educated persons,” said Mishra.

Suggesting the remedies for ameliorating the political career, Mishra in the light of his four decade of experience as civil servant said, “There is a need to create the institution of Union Political Service Commission on the lines of Union Public Service Commission, to conduct examination for the selection of candidates to contest election to the Lok Sabha. There will be specially designed syllabus for this purpose. Persons who will qualify the examination will be allowed to contest. After they are elected, they will undergo a training. After the successful completion of training they will take the oath. Similar mechanism should be there in the states for MLAs.”

Prashant K Mishra further said, “There should be prescribed educational qualification, i.e; minimum graduation; age limit between 25-60 years. He should be subjected to medical fitness examination followed by police verification before being placed as political elite. Candidates should not be given more than five attempts for clearing the exam. The MPs and MLAs since getting monetary considerations i.e; salaries and perks from the government, should be considered as public servant at par. The strict compliance of Articles 14 & 16 should be followed while dealing with the placement of these political elites viz. MPs and MLAs. There should also be the separation of powers where the posts of President, Vice-President and Governor should be above politics and political considerations. It is a wrong practice that the same politicians sometimes act as ministers and the other times act as Governor. The Executive should not be mixed with the lawmaker. Accordingly, such constitutional institutions must be protected against political encroachment”.

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